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American Bar Association

  Children's Rights Litigation

Case Notes


Landmark Juvenile Law Cases


In Re. Emoni W. et. al.

305 Conn. 723, 48 A.3d 1 (2012)
The Supreme Court of Connecticut held that the Interstate Compact on the Placement of Children does not apply to out-of-state, non-custodial parents.


Clauson v. City of Springfield

848 F. Supp. 2d 63 (D.Mass. 2012)
An attorney argued that because an educational surrogate parent has a right to counsel at a hearing under the IDEA, someone was obligated to pay for that counsel.


Midwest Foster Care and Adoption Association v. Kinkade

(W.D. Mo. 2012)
The statutory provisions at issue lack the rights-creating, individually focused language required by Gonzaga, even though individual foster children may benefit.


Henry A. v. Willden

(9th Cir. 2012)
Applying the Blessing/Gonazaga test for each provision, the Ninth Circuit reversed on the items regarding case plans and case records and affirmed on the remaining items.


In re C.M.

(N.H. 2012)
The New Hampshire Supreme Court acknowledged the interests at stake but declined to recognize a right to counsel for parents facing the loss of their parental rights.


In re Ethan C.

(Cal. 2012)
Only ordinary negligence, not criminal, is required to support dependency jurisdiction under WIC § 300(f).


In re Dependency of M.S.R. and T.S.R.

No. 85729-6 (Wash. Mar. 1, 2012)
The Washington Supreme Court held that children have a liberty interest at stake in child welfare cases, but that doesn't translate to categorical right to counsel.


J.D.B. v. North Carolina

564 U.S. ___ (2011)
The majority held that age properly informs the Miranda custody analysis and spoke at length about how children cannot simply be viewed as miniature adults.


Bellevue School Dist. v. E.S.

No. 83024-0 (Wash., filed June 9, 2011)
The Washington Supreme Court reversed the court of appeals decision in Bellevue School Dist. v. E.S. and found no right to counsel under the state or the federal constitution.


Camreta v. Greene

No. 091454 (U.S. May 26, 2011)
The Supreme Court held that the case is moot because S.G. has no continuing stake in the controversy, given that she lives in Florida and is almost 18.


In re William M and Marques B

124 Nev. Adv. Op. No. 95 (Nov. 26, 2008)
The Nevada Supreme Court, en banc, struck down Nevada’s presumptive certification statute, finding that the law was a violation of the child’s right against self-incrimination guaranteed by the Fifth Amendment of the United States Constitution.


Kansas Supreme Court Rules that Juveniles Have a Right to a Jury Trial

Appeal No. 96,197: In the Matter of L.M.

Saying the Kansas Juvenile Justice Code has become “more akin to an adult prosecution,” the state Supreme Court today ruled 6-1 that juveniles have a constitutional right to a jury trial.


In re C.S. [PDF]

115 Ohio St.3d 267 (2007)

The Supreme Court of Ohio issued a decision which made the right to counsel more meaningful for youth in delinquency proceedings. The Court held that juveniles are not permitted to waive their constitutional right to counsel unless the trial court conducts an analysis of each youth's background and experience generally and in the court system specifically.


Finstuen v. Edmondson

AUGUST 2007 UPDATE – US Tenth Circuit Court of Appeals affirms district court order declaring unconstitutional an Oklahoma law refusing to recognize the legality of adoptions finalized in other jurisdictions and involving adoptive parents of the same sex. Previously in this case, a two-year-old Oklahoma law recognizing the legality of all adoptions finalized in other jurisdictions, except for those involving adoptive parents of the same sex, was determined to be unconstitutional.


Morse v. Frederick

551 U.S. ___ (2007)

The United States Supreme Court determined that a high school principal did not violate the First Amendment’s guarantee of free speech when she suspended a student for displaying, on a public sidewalk outside of school grounds, a cryptic banner reading “Bong Hits for Jesus.” Because the student was on a school sponsored event at the time of the display, the Court determined that the principal reasonably concluded that the banner advocated the use of illegal drugs. Noting that the speech rights of students in school are not as extensive of adults in other settings, the Court recognized the school’s interest in deterring drug use. Justice Breyer agreed with the five justice majority on the outcome but would have decided the case on a narrower basis without reaching the First Amendment issue. A more detailed summary of the case will be coming soon.


Winkelman v. Parma City School Dist.

On May 21, 2007, the United States Supreme Court decided in that parents of children with disabilities may bring suits under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., without representation by counsel.


R.S. v. Dep’t of Children & Fams. [PDF]

In an original proceeding resulting from an interlocutory order continuing a termination of parental rights trial over the objection of the child’s attorney and guardian ad litem, the Florida Fourth District Court of Appeal reversed the trial court’s order delaying the trial. The court determined that Florida’s statutory limit on continuances to no more than 60 days in a 12 month period limited the trial court’s discretion in granting continuances. Noting that time limitations are the right of the child under Florida statutory law, the court emphasized that continuances within the statutory limitation must be necessary to protect the child’s best interests and necessitated by extraordinary circumstances.


B.T. v. Jackson, – S.E. 2d – (W.Va. November 30, 2006) [PDF]

In a domestic violence case initiated by a 15 year old boy acting in his own right and without a guardian or next friend, the West Virginia Supreme Court of Appeals affirmed the trial court's dismissal of the mother's petition for a writ of prohibition. The mother argued that the family court acted outside of its jurisdiction by issuing a protective order on the teenager’s petition. Adhering to the historical rule that minor’s generally must proceed through a next friend or guardian, the court recognized a de facto next friend. Significantly, the court further ruled that when a minor files a petition for a protective order without a next friend or guardian, the lower court must immediately appoint a guardian ad litem for the minor, thus protecting the interests of the minor from procedural defenses.


Guardian Ad Litem’s Duty of Confidentiality Not Absolute

The West Virginia Supreme Court of Appeals determined in In re Christina W. , – S.E.2d – (W.Va. 2006) that a guardian ad litem must disclose to the presiding court an incident of sex abuse, notwithstanding a mature minor’s desire to keep the incident confidential. Recognizing the potential conflict between the attorney/client privilege and the best interests of the child, the court concluded, “. . . while a guardian ad litem owes a duty of confidentiality to the child[ren] he or she represents in child abuse and neglect proceedings, this duty is not absolute. Where honoring the duty of confidentiality would result in the child[ren]'s exposure to a high risk of probable harm, the guardian ad litem must make a disclosure to the presiding court in order to safeguard the best interests of the child[ren].”


Tennessee Rejects Jury Trials in Delinquency Proceedings [PDF]

Concluding that Tennessee’s juvenile court system is a creature of the legislature, the Tennessee Supreme Court unanimously rejected the proposition that juveniles are entitled to trial by jury as a matter of constitutional law in State v. Burns, No. No. E2004-01632-SC-R11-JV (September 25, 2006). The court also recognized, however, that the legislature may provide for jury trials in juvenile proceedings. The court stressed “...that the system for dealing with juvenile offenders as juveniles is separate and distinct from the criminal justice system,” and noted that juveniles who are tried as adults have “...the full panoply of constitutional rights accorded to criminal defendants, including jury trials.”


Kentucky Joins Courts Rejecting Crawford in Civil Child Welfare Proceedings [PDF]

In Cabinet for Health & Fam. Servs. v. A.G.G., 190 S. W. 3d 338 (Ky. 2006), the Kentucky Supreme Court reversed a court of appeals decision rejecting child hearsay in a termination of parental rights hearing. The Kentucky high court found the statements admissible under the state's hearsay exception for statements made for the purpose of medical diagnosis or treatment and rejected the application of Crawford’s confrontation clause analysis in civil, child welfare proceedings.


In re R.L.C.

In an opinion narrowly construing the U.S. Supreme Court’s landmark decision in Lawrence v. Texas, the North Carolina Court of Appeals, in a 2-1 decision, upheld the delinquency conviction of a teenage boy.


In re Pamela A.G.

After the four (4) year old child made statements describing sexual abuse to her foster parents, a state social worker, a trained forensic interviewer, and her therapist, the state amended its abuse and neglect petition to include allegations of sexual abuse.


In re Walling

This termination of parental rights case involved a five (5) year old boy whose mother had alcohol and substance abuse and mental health issues.


E.C. v. Sherman

The United States District Court for the Western District of Missouri declared that Missouri statutes rolling back adoption subsidies were unconstitutional and permanently enjoined the statutes from taking effect.


In re Adoption of B.G.J.

The Kansas Supreme Court unanimously affirmed a trial court order finding “good cause” for deviating from the adoptive placement preferences of the federal Indian Child Welfare Act (ICWA).  The court first reviewed the standard of review in Idaho, Alaska, Arizona, and California, then adopted a “substantial abuse of discretion” standard of review.


Anderson v. Town of Durham

In a 6-1 decision, the Maine Supreme Court upheld a state law banning state funding of religious schools. The dissent argued that the Maine law is invalid because the US Supreme Court has ruled that state subsidies for religious schools do not violate the establishment clause of the U.S. Constitution.


Harper v. Poway Unified Sch. Dist.

In a 2-1 decision, a panel of the US Court of Appeals for the Ninth Circuit determined that speech protected outside a public school is not necessarily protected on school grounds.  At issue in Harper v. Poway Unified School District, – F.3d – (9th Cir. 2006), was whether schools can prevent students from wearing clothes with messages thought to demean or impinge on the rights of others.


Kenny A. v. Perdue

In February 2005, a federal district court ruled in Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005) that a class of abused and neglected children in two Georgia counties have the right to legal representation in all proceedings while in state custody. The children argued that the counties and a Georgia foster care agency violated their due process rights under the Georgia Constitution by forcing attorneys to represent so many clients that adequate legal counsel was effectively denied in termination of parental rights proceedings. Following the court’s ruling, the plaintiffs and one of the counties reached a tentative settlement agreement that will, among other things, limit the number of termination cases that case workers may handle at any one time and that will require lawyers for the children to meet with the children, attend all court proceedings, file necessary papers, and zealously advocate for the child's best interests. Final court approval of the agreement is expected later this Spring.